concurring in part and dissenting in part:
I concur in the majority’s opinion insofar as it affirms that portion of the order in which the trial court found that there was no evidence that the hole into which Monk fell was used by "elevating machines or hoisting apparatus” within the meaning of section 7 of the Act. However, I respectfully dissent from the majority’s opinion insofar as it reversed that portion of the order in which the trial court found that at the time of his injury the floor upon which Monk was walking was being used merely as a pathway, and not as a "support” within the meaning of section 1 of the Act.
As the majority notes, the question of whether the floor was being used as a "support” within the meaning of the Act is a matter of statutory construction and therefore a question of law for the court to determine. (See Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421.) In order to determine whether a device qualifies as a “support” within the meaning of the Act, a court must determine what the intended use of the device in question was at the time of the injury. (See Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 297.) Under Vuletich, a floor is not a “support” within the meaning of the Act when it is being used merely as a walkway, but if a worker relies on a partially completed floor for support in the performance of some hazardous activity or as a working platform, he may recover. See Vuletich, 117 Ill. 2d at 423.
In the present case, I agree with the majority, and with the trial court, that Monk had been using the floor as a "support” prior to his accident when he was handing construction materials to his coworker. However, I agree with the trial court, and disagree with the majority, in that I believe that, in order to maintain a rational basis for deciding what the intended use of the device was at the time of the injury, the court must first decide what the actual intended use of the device was at the instant of the injury. At the time of the injury, when Monk turned to walk outside for more insulation, I would find that he was using the floor merely as a walkway, and not as a "support” within the meaning of the Act.
The majority attempts to distinguish this court’s decision in Osborne v. Tarwater (1994), 259 Ill. App. 3d 703, by stating that in the present case, unlike in Tarwater, Monk was using the floor both as a “support” within the meaning of the Act and as a pathway and that the accident apparently occurred during a transition between the two uses of the floor. However, the facts indicate that at the time of the injury Monk had finished handing insulation up to his co-worker, he had backed up, and he was turning to walk outside for more insulation when he stepped on, or tripped on, a piece of debris covering a corner of the hole in the floor and fell through the hole. In Tarwater, at the time of his injury, the plaintiff was walking across the floor intending to go to the second floor to pick up electrical cords and tools before he went home when he stepped on a hole covered by insulation and fell through the hole. (Tarwater, 259 Ill. App. 3d at 705.) In Tarwater, this court found that at the time of the injury the plaintiff was using the floor merely as a pathway, and not as a “support” within the meaning of the Act. Tarwater, 259 Ill. App. 3d at 709.
Similarly, in Gannon v. Commonwealth Edison Co. (1989), 182 Ill. App. 3d 228, 229-30, the plaintiff was a pipe fitter who was carrying beams from one area to another for stockpiling. As Gannon was carrying a beam, he slipped on a greasy substance on the floor and fell. (Gannon, 182 Ill. App. 3d at 230.) Even though the plaintiff in Gannon was actually carrying construction materials at the time of his injury, the court found that he was using the floor as a pathway and not as a "support” within the meaning of the Act. Gannon, 182 Ill. App. 3d at 233.
I disagree with the majority in that I believe that the facts in the present case are not distinguishable from the facts of Tarwater and Gannon. Therefore, I would find that at the time of the injury the plaintiff was using the floor as a pathway and not as a "support” within the meaning of the Act. Consequently, I would affirm the trial court’s order granting summary judgment in favor of the defendants on the counts brought under the Act.